Triple Divorce: Constitutionality & Banning

By: Prof. Faizan MustafaDecember 16, 2016 4:49 pm

Allahabad High Court while dismissing two petitions and refusing to give any relief has made interesting observations on triple divorce. There was no ‘judgment as was reported in the media as judgment determines rights and liabilities. In one case the petitioner was the second wife who had sought protection from the police harassment as mother of divorced first wife was threatening her. Here the contention was that since the husband gave instant triple divorce just to marry another woman,first marriage has not dissolved. Justice Suneet Kumar did not appreciate that as per existing law, bigamy is not an offence for Muslims and thus even if first marriage subsists, husband can take a second wife, of course if he can‘do justice between the two wives’ and first wife would retain all rights of wife including right to residence and maintenance.

In the second petition, the wife whose first husband was living in Dubai has married another man by asserting that her husband has divorced him on telephone. The husband denied this but the lady insisted that her second marriage is valid as triple divorce on phone has legally dissolved her first marriage. The learned judge refused to go into the validity of either divorce in the first case and marriage in the second but rightly noted that not only men but even women do take undue advantage of personal laws. In the process the judge said that triple divorce is cruel, inhuman and unconstitutional. Now the question is without recording a finding should a judge make such sweeping observations particularly when the judge has recorded that the matter is pending before the apex court. The current debate even in Supreme Court is unnecessary as in 2002 itself apex court has held in Shamimara case that triple divorce does not dissolve marriage. How many times we want courts to say the same thing ie triple divorce would be counted only as one and it does not dissolve marriage if it was not for a reasonable cause with some efforts of reconciliation or arbitration. There are number of High Court decisions as well on this very point.

A writ court can declare a ‘law’ as unconstitutional. But is Muslim Personal Law ‘law’ within the meaning of Article 13 of constitution? Only a ‘law’ can be challenged and courts would have power of judicial review if a ‘law’ is in contravention of fundamental rights. ‘Custom and usages’ are not personal laws but deviations from personal law. Had personal law been ‘law’, untouchability would have become void on its own. Its explicit abolition under Article 17 indicates that framers of the constitution intended to exclude ‘personal laws’ from the definition of ‘law’. Even ‘constitutional amendments’ are not ‘laws’ under Article 13 and cannot be challenged on the basis of fundamental rights. The limited challenge can be on the basis of ‘basic structure’ of the constitution. ‘Judgments’ of the Supreme Courts too are also not ‘law’ under Article 13. The recent court judgment on mandatory singing cannot be considered law under Article 13 but it is very much law under Article 141. Thus this judgment cannot be challenged as violative of any fundamental right.

But parts of Muslim Personal Law which have been enacted by the Parliament are certainly ‘laws’ such as Shariat Act, 1937, Dissolution of Muslim Marriage Act,1939 etc. If any of these laws are contrary to fundamental rights, court would be free to strike them out as unconstitutional.Muslim Personal Law is largely based on juristic interpretation.Islamic law is given by the experts. Thus there are various schools. Law making is indeed a private enterprise in Islam. Jurists intervene between God and State. Muslim Personal Law has not been passed by any legislature. It is based on the interpretations given by various jurists. Can courts declare opinion of foreign jurists who lived one thousand years ago and who considered triple divorce as valid unconstitutional is difficult to answer. Even opinion of Indian jurists cannot be said to be law. Juristic opinion of course is an important source of International Law under Statute of International Court of Justice.

Moreover if people in the family and neighbours consider that divorce has taken place, court’s declaration that it has not taken place would not drastically change the ground situation. Things which society considers illegal, law on its own cannot easily make legal. There have been cases including the second case of Allahadad High Court where wife herself asserted that triple divorce has irrevocably dissolved marriage. In Masroor Ahmad case, the wife filed the case of rape against husband who continued to have sexual relations with her after giving her triple divorce.It is a different story that the Delhi High Court held that since triple divorce does not dissolve marriage and therefore there was no rape. The time has come when ulema need to come forward to declare that three instant divorces in one go without prior efforts of reconciliation would be considered as just one pronouncement. There is enough room within Islam to show such flexibility.

Modi government has argued in the Supreme Court that triple divorce is not an essential aspect of Islam because even Muslim Personal Law Board had argued that triple divorce is undesirable. The government argument is that something which is undesirable cannot quality as an essential Islamic practice.What the government has failed to understand is that Article 26 gives religious freedom both to religious denomination as well as any sect thereof. Thus various sects have their own laws. Moreover the question of what is permissible (halal) and what is prohibited (haram) is the central to Islam. Islam does lay down what food is permissible, what clothes or metals one can wear and what relationship is valid. If some Muslim sects consider triple divorce as valid, sexual relations between divorced couple would become haram or prohibited and thus the question is very much part of essentiality for those who consider triple divorce as complete divorce. We need to prepare people od such sects for any change.

Law is not a great agent of social control and we must accept its limitations in bringing about social change. Hindu law reforms have not fully succeeded in ensuring empowerment of Hindu women.

Similarly demands of banning triple divorce are misplaced as ‘banning’ would invariably mean‘prohibiting’ some conduct generally through the instrumentality of ‘criminal law’. The beef ban was thus done under law passed by the state legislature. Conversion ban too was done by a similar law.Strangely even Muslim Personal Law Board senior officials too are singing the tone of imprisonment for the one who gives triple divorce. Judiciary cannot create new crimes. We need an Act of Parliament to make an act criminal.Moreover it should also be kept in mind that everything which is banned need not be declared as unconstitutional. Intentional Killing of human being has been banned and is punishable under Indian Penal Code as murder or culpable homicide not amounting to murder but no law has declared intentional homicide as unconstitutional.

This author is of the view that it is the duty of ulema to rise to the occasion and urge people to give divorce only as per Quranic procedure if it is unilateral ie after making necessary efforts of reconciliation and arbitration with just one revocable pronouncement in a period of three months or alternatively have divorce by mutual consent which is recognized mode of divorce in Islam. Pre-nuptial contract(nikah nama) with terms and conditions clearly laid down would be much better solution.

The author is Vice-Chancellor of NALSAR University of Law, Hyderabad.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

with due respect to the sir and his view on triple divorce, i would like to put certain disagreement specially with regard to the matter of keeping personal law beyond the ambit of article 13. No doubt personal laws are not made by the parliament so they can not be kept in the ambit of law for the purpose of article 13 but one should think that article 13(1)prescribes for the laws in force in the territory of India at the time of commencement of the constitution. such laws so long they are inconsistent with the provisions of the constitution are void to the extent of their inconsistency. Definitely personal laws are laws enforce in the territory of India at time of such commencement.

Article 25(2) empowers the state to enact law regulating the Hindu and other native Indian religions , if so no religion which is not part of specified categories can never enjoy more privilege of being inscrutable on anvils of jurisprudence on fundamental rights

Mr. Faizal should have raised to occasion and asked for reforms. Religious texts are very old and one can not say they have stay as it is… Halal and Haram should evolve with time. The testing stone for every law must be morality. Even Hindu texts never prohibited bigamy, but it was made a law based on the need f the hour.